Saturday, February 21, 2015

Yes, US v. Miller isn't helpful to Scalia's opinion in DC v. Heller.

Because it totally contradicts what he claims when properly understood.

I offer Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972)
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.

My views have been stated in substance by Judge Friendly, dissenting, in the Court of Appeals. 436 F.2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn. Gen. Stat. Rev. 29-35, 29-38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer’s tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.

“If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows `that criminal activity may be afoot.'” 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30.
Quick trivia question: What special characteristic about Justice Douglas might make him qualified to have special knowledge of the US v Miller decision? You should know this if you’ve actually read US v Miller.
You have read US v Miller, haven’t you?

Anyway, I'm surprised that this explanation of the Miller decision by someone who had been on the court when that decision was made has not had more publicity.

1 comment:

  1. Laci,

    As always, your grasp of the subject matter is profound. It is STAGGERING how far the understanding of the law has come in 40 years. A change NOT due to new people or new laws in that time, though yes there are new justices, but rather when we remember those people who voted FOR the majority in DC v. Heller were both around AND had (for those voting in the majority) understood the premise of the 1972 decision, we have to conclude they simply chose to set aside that entire premise (of the Miller case), willfully, and directly in contradiction to the idea that prior law MUST inform subsequent law in order that a society function correctly. In truth, Mr Scalia, Kennedy, Roberts, and Alito have to have decided to ignore Stare Decisis, not just Thomas. They have to have chose to counterfeit a reason because it IS in fact clear that the 2nd Amendment applied to the formation of a militia. They contrived this counterfeit quite simply because they wanted a political outcome rather than the factual one which was so clearly right there before them. They wanted it and they enacted it (yes enacted, they INVENTED law and rights), despite their oaths. In short, they violated everything they swore to uphold. No surprise, but certainly disgust.